EEOC warns employers of discrimination related to domestic violence

Within a one-week period in October 2012, a beauty parlor in Wisconsin and one in Florida both turned into bloody crime scenes after gunmen who apparently were enraged at their estranged spouses opened fire at the salons where their wives worked. In suburban Milwaukee, the armed man killed three salon employees, including his estranged wife who recently had obtained a restraining order after reporting domestic abuse. A few days earlier, another gunman had opened fire at a salon in suburban Orlando, killing three women and wounding a fourth, his wife.

The shooter in that case likewise had been ordered to keep away from his spouse.

Those incidents heightened employers’ fears that domestic violence can become workplace violence, threatening everyone who works with an abuse victim.

“After the attack in Wisconsin, employers have legitimate concern about violence in the workplace,” says Sally Scott, a partner at Franczek Radelet. “You have to be concerned about the safety of not just one employee, but of all your other employees.”

But in a recent Q&A fact sheet, the Equal Employment Opportunity Commission (EEOC) underscored the legal risks involved in dismissing or refusing to hire someone an abusive partner has victimized. Neither Title VII of the Civil Rights Act of 1964 nor the Americans with Disabilities Act (ADA) expressly prohibits discrimination against individuals who are victims of domestic violence, sexual assault or stalking. But the EEOC’s guidance includes several examples in which it contends such victims may be protected from discrimination under the federal laws. The examples include situations in which the victim may claim disparate treatment, harassment and retaliation.

Barry Hartstein, a Littler Mendelson shareholder, likens this EEOC communication to its April 2012 guidance on discrimination based on an applicant’s criminal history—another area not explicitly covered by Title VII but one in which the agency contends racial stereotyping and disparate treatment can result.

“The bottom line is that it’s an agency pushing the envelope a little where there are societal interests they feel they can and should be addressing,” he says. “If they can find a way to bring it under their jurisdiction and send a message to the employer community, that is what they are going to do.”

Word Choice

In its fact sheet, the EEOC provides examples of situations in which an employer’s treatment of an abuse or stalking victim may violate Title VII prohibitions against disparate treatment based on sex, including treatment based on sexual stereotypes. It does not directly address employer concerns about protecting the workplace from the kind of violence that occurred in the two beauty salons. Instead, it cites a situation in which an employer engages in sexual stereotyping by terminating an employee after learning she is a domestic violence victim, saying he fears the “potential drama battered women bring to the workplace.”

Scott says she believes the EEOC deliberately phrased that scenario so it would fall under the prohibition against sex-based stereotyping.

“They very carefully picked their wording so it would fall under Title VII,” she says. “It would be a very different case if the employer said, ‘We need to end your employment or transfer you because we are concerned about the safety of the rest of the workforce.’ The question is, is it being done because of gender, or because of a real threat that is not gender-based but violence-based? I am not sure how far the EEOC would try to take that or how it would play out in court.”

Maria Greco Danaher, an Ogletree Deakins shareholder, cautions that employers who terminate or transfer victims of domestic violence must have concrete facts to show the situation threatens the safety of other employees. For example, if a woman has a protective order, her violent spouse has a history of stalking her and he has a weapon, an employer may be justified in taking action, she says.

“Otherwise the employer is just making a paternalistic decision akin to saying, ‘We don’t want a woman working around chemicals because she is pregnant,’” Danaher says. “To just say she has been a victim of domestic violence in the past and ‘what if’ he comes after her—the ‘what if’ is not sufficient.”

“They have to make judgment calls on what interest is paramount,” he says. “Some may say, ‘I am willing to take the risk of a discrimination claim to avoid issues of violence.’ The EEOC is spot on in looking at some of these concerns.”

ADA Applications

The EEOC guidance covers several other ways in which discrimination laws may protect victims of domestic violence, sexual assault and stalking. To illustrate a potential violation of Title VII’s prohibition against sexual harassment, it cites a supervisor making sexual advances on a vulnerable farmworker after learning she has been subject to domestic abuse and is living in a shelter.

The agency also points out that the ADA prohibits different treatment or harassment at work based on real or perceived impairments, including those resulting from domestic violence, sexual assault or stalking, and such impairments may require a workplace accommodation. For example, an employer checking out an applicant’s background online may learn that she was treated for depression after a sexual assault and decide not to hire her, fearing she will need continued treatment. Such action could violate the ADA because depression is considered a disability that triggers ADA protection.

Although most of the scenarios are straightforward examples of discriminatory behavior, Danaher points out one that is more ambiguous. As an example of how the ADA’s reasonable accommodation requirement applies, the EEOC describes a situation in which the victim of a sexual assault requests unpaid leave to get treatment for depression, even though she has no accrued sick leave and is not covered by the Family and Medical Leave Act. The employer denies the request because it “applies leave and attendance policies the same way to all employees.” Danaher says because employers are typically advised to treat all employees, including those in protected categories, in a consistent manner, this example may not seem to be an ADA violation.

“That one is a little bit of a stretch, but I can see where they ended up where they did,” she says. “This scenario clearly indicates that the EEOC has an expectation that employers will change their consistently applied leave and attendance policies if such change is necessary to accommodate the need for psychological treatment stemming from a sexual assault or domestic violence.”

EEOC Expectations

Although employment law experts say most of the examples in the EEOC fact sheet shouldn’t come as a surprise to employers, they also note the agency is signaling its intention to protect victims of domestic violence, sexual assault and stalking by stretching the law however they can.

“You may not think of issues related to domestic violence or sexual assault as falling under Title VII or the ADA, but as an employer, you need to be sensitive to that and keep in mind that the EEOC is taking the position that these laws can apply,” Scott says.

That may require additional training of supervisors and managers and updating of employment policies, she adds.

Danaher seconds the recommendation for training and adds that a company should document training sessions related to domestic violence, sexual assault and stalking.

“The EEOC’s expectation is that attention will be paid to these issues,” Danaher says. “That’s the takeaway: The EEOC is saying we will be paying attention to this, so you should be paying attention to it.”